Good day everyone, and welcome to another discussion in our “What if” series, where we bring you insights in the format of a “what if” question on the ever-evolving landscape of employment law.
I am Ross Simon from Maserumule Corporate Employment Law, and in today’s discussion we will be unpacking:
What if…an employer treats the same act of misconduct by two employees differently. What are the overarching legal considerations and implications?
Employers often feel that a strict, "zero tolerance" policy grants them an absolute right to dismiss an employee who commits an act of dishonesty.
However, employment law dictates that fairness is not a one-way street.
It is not merely about whether an infraction occurred, but how uniformly and fairly the employer responds to that infraction across the board.
To understand the legal tightrope of disparate treatment, we must look at a recent and highly useful judgment delivered by the Labour Court in the matter of:
City of Cape Town v SAMWU obo Mlungwana.
In this matter, an administrative clerk was dismissed for dishonesty after overstating his overtime by a mere 14 minutes.
The City relied heavily on its strict “zero tolerance” stance. It was undisputed that the employee had misrepresented his hours.
However, the evidence revealed a fatal flaw in the employer's case: the employee’s direct supervisor had committed the exact same offense on the very same day, overstating her time by 9 minutes.
Yet, she was not disciplined, nor was she even charged at the time of the initial arbitration.
This scenario perfectly illustrates what is called contemporaneous inconsistency. This occurs when two or more employees commit the same infraction at the same time but face entirely different disciplinary paths.
In terms of employment law, this principle is deeply rooted in our constitutional rights to equality and fair labour practices under Sections 9 and 23 of the Constitution.
The core legal rule is simple: like cases must be treated alike, unless there is an objective, rational justification for doing otherwise.
Why This Matters to employers: We can extract three critical takeaways for employers, specifically focusing on the legal expectations surrounding parity and workplace trust.
And this is where the legal theory meets workplace reality for employers.
Let’s break down these three definitive rules, starting with the true definition of parity:
First: Parity Requires Procedural Consistency, Not Just Identical Penalties. The Labour Court clarified that consistency does not strictly mean every employee must receive the exact same final sanction. However, it absolutely means that the same preliminary treatment and procedural steps must be initiated.
The Court explicitly pointed out that while the employee in this case was charged and ultimately dismissed, his direct supervisor, the very person with whom he committed the offence, was not even charged.
Charging a subordinate while completely failing to charge a supervisor who participated in the exact same joint offense is a fatal procedural error that invalidates the fairness of the process.
Second: The Contradiction of Selective "Zero Tolerance". An employer cannot claim that an act of dishonesty completely shatters the employment trust relationship in one instance, while simultaneously overlooking or tolerating the exact same behaviour from another employee.
By failing to discipline the supervisor, the City of Cape Town’s own conduct actively undermined its argument that the trust relationship had irretrievably broken down. Trust is an objective standard; selective enforcement destroys the credibility of a "zero tolerance" defence.
Lastly: Minor Distinctions Will Not Justify Different Treatment. The Court explicitly rejected the notion that a difference between 9 minutes and 14 minutes of time-fraud was legally significant.
While valid grounds for differentiation do exist, such as varying disciplinary records or distinct roles as an instigator, slight variations in the timing are wholly insufficient to justify dismissing one employee while letting another off the hook completely.
The operational implications of getting this wrong are severe. If an employer fails to maintain historical or contemporaneous consistency, they face immediate exposure at the CCMA or the Labour Court:
-
First, the dismissal will be ruled substantively unfair solely based on the unjustifiable inconsistency, even if the employee’s guilt is completely undisputed.
- Second, because the employer's actions prove that the misconduct does not inherently render the employment relationship intolerable, the primary legal remedy awarded will be reinstatement, as was the outcome in the Mlungwana case.
- Finally, selective discipline fosters a workplace perception of bias, partiality, or victimization, which the courts aggressively reject.
Ultimately, consistency is the bedrock of substantive fairness. Before you enforce a "zero tolerance" policy, ensure your disciplinary response is uniform, documented, and legally defensible across all tiers of your organization.
That brings us to the end of this week’s discussion. Thank you for joining us. I hope you have found our discussion informative.
If you have any questions or comments, we would love to hear from you – you can find us on social media, or email me at
ross@masconsulting.co.za
Until next time – good-bye.
